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Twin sent 100 texts to girlfriend the night baby died

Mark Russell

A footy game between Carlton and West Coast Eagles could prove vital in determining if Harley Hicks murdered a baby during a home burglary, a court has heard.

Mr Hicks' twin brother, Ashley, claims he was at home with their father watching the football game before going to his bedroom where he stayed all night phoning and texting his girlfriend at the time 10-month-old baby Zayden Veal-Whitting was being attacked.

Defence barrister David Hallowes has asked a Supreme Court jury sitting in Bendigo to look closely at Ashley Hicks' alibi.

Harley Hicks, 21, has pleaded not guilty to murdering Zayden in a house at Eaglehawk Road, Long Gully, in the early hours of June 15, 2012.

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Zayden's mother, Casey Veal, found him lying in blood-stained sheets shortly after realising her home had been robbed.

The Crown claims Mr Hicks had been robbing the house when he unplugged a baby monitor before striking the baby with a baton about 25 times.

The motive for the killing was, according to the Crown, possibly because the baby had woken and Mr Hicks wanted to silence him so he would not be caught.

The defence claims Mr Hicks did not enter the house, did not steal anything and did not kill Zayden.

Crown prosecutor Michele Williams, SC, told the jury that Ashley Hicks had sent his girlfriend more than 100 text messages from his McColl Street home, and made up to eight calls to her through the night.

But Mr Hallowes said Ashley could not be ruled out as the killer.

He said while Harley Hicks lied to police about how another man, Aiden Kirby, was out with him on the night of June 14 committing burglaries. The critical question was whether he had actually been out with his twin brother, he said.

"I'll be suggesting to you it might not be the most surprising thing in the world for someone who's out committing offences with another person, that they might want to protect that person, especially if it was a family member and they might point the finger at someone else," Mr Hallowes said.

"It's a terrible thing to do, a shameful thing to do but what I'll be suggesting it's not the most surprising thing.

"To convict Harley Hicks, they [the Crown] must prove to you beyond reasonable doubt that Ashley Hicks did not kill Zayden Veal-Whitting. I say to you they can't do that."

Mr Hallowes said the father of the brothers, John, claimed Ashley had watched the Carlton-West Coast game up to half-time, when he changed the channel.

But Ashley claimed he watched the game to the end and said he thought it could have been possibly between Carlton and Port Adelaide.

Mr Hallowes said Ashley called his girlfriend at 9.37pm on the night but did not phone her again until 2.14am, while numerous text messages.

"What do the sending of texts actually show as to the movements of Ashley Hicks that night?" he asked.

"At one stage the prosecutor asked, 'How could Ashley Hicks possibly be sending and receiving all these texts if he's running around, jumping over fences?' "

"She made it sound as though when Harley Hicks left Green Street that he must have engaged in some sort of constant marathon, jumping over fences, always running.

"Use your common sense. You can be walking the streets, sending texts, receiving texts.

"Well, what happens with Ashley Hicks' phone? At 12.52am Harley Hicks sends an SMS to Ashley Hicks, and at 12.54am Ashley Hicks rings Harley Hicks for 26 seconds. Not a call that goes to message bank, a connected call, 26 seconds."